These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 17 - Fraud on the Tribunal
LEO NumTopicsSummaryDate
1777

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17-Fraud on the Tribunal

A bankruptcy lawyer who finished a representation and closed the file shortly after the discharge order but who later learned that his former client had inherited real estate that must be reported to the bankruptcy court because it was received within a specified "window" of time after the discharge order had a duty not to report the inheritance to the court. The Bar explained that the "clearly established" standard for fraud that must be reported to a court requires the client to acknowledge the fraud. The client here claimed that the failure to report within the required window of time was a mistake, and that the client did not understand that he had an obligation to report the inheritance until he talked to his former lawyer, after the "window" period had lapsed. The Bar explained that "regardless of what hunch or assumption this attorney may have or wish to make, the attorney does not have information clearly establishing client fraud on the court," and therefore may not reveal it to the court. Lawyers may not reveal "mistakes made by former clients after termination of the attorney-client relationship."6/13/2003
1331

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17-Fraud on the Tribunal

A client admitted to a lawyer that the client was using a false identity when charged with DUI. If the client had been arraigned under a false name, or the client's lawyer had responded falsely regarding the name, then the client has committed fraud on the court. If so, the lawyer must first request that the client tell the court the true name and then (if the client refuses to do so) reveal the fraud to the court. The Bar indicates that "it would be improper to permit him to perpetrate a fraud on the court or to assist him in such perpetration." 5/8/1990
1186

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A court appointed lawyer represents a criminal defendant, against whom two offenses have been docketed for trial on the same date and time. The court arraigns only on one charge, and the court does not address the second charge. Even if the client had been in pretrial confinement because of the overlooked second criminal charge, the lawyer had a duty not to reveal the court's failure to address the second charge. Determining whether the lawyer must fill out a form (a standard "timesheet") that might reveal the court's mistake is a question of law beyond the Bar's jurisdiction, but the lawyer may not "enhance" the timesheet to present a misleading impression.2/13/1989
1823

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17-Fraud on the Tribunal

48-Criminal Defense Lawyers

A criminal defense lawyer who has been unable to contact her client despite efforts to do so, but who assumed that the client would not want a jury trial because juries have "imposed lengthy sentences in similar cases," violates the rule governing the parameters of her authority by indicating to the court that she wished the matter to be set as a bench trial (without informing the court or the prosecutor that she had not spoken with her client). Because there is a "common understanding by the criminal bar that a client can only waive the constitutional right to a jury trial through voluntary, intelligent consent," the criminal lawyer’s statement to the court that "she wishes to have the client's case set for bench trial" amounted to a knowing falsehood -- even though "on its face and with no context, the statement does not seem to be false or involve misrepresentation" (although there would be no falsehood in the unlikely event that the criminal lawyer was "completely ignorant of the requirement that the client must provide voluntary, intelligent consent.")1/10/2006
1632

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13-Marketing - Miscellaneous

17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

31-Protecting and Disclosing Confidences and Secrets

42-Payments to Solicit Recommendations

50-Lawyer-Owned Businesses

A law firm may not pay a service fee to a so-called "lender service bureau" in return for obtaining legal work from the bureau. Because the bureau apparently is not engaging in fraud against a tribunal, however, the law firm is not obligated to disclose the bureau's operations to the proper authorities. If the law firm determines that the possible misconduct of lawyers holding an "ownership or management interest" in the bureau meets the proper standards, the misconduct would have to be reported. 2/7/1995
0972

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A law firm should have advised the tribunal before obtaining a judgment against a debtor who had paid the amount due in full after being served and before the hearing date. 9/30/1987
1678

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

80-Communicating with an Adversary's Expert

A lawyer (acting directly or through an expert witness) may not "advise the other party's expert witness not to testify," although the lawyer has no duty to take any measures in response to the lawyer's expert acting independently in convincing the opposing expert not to testify (unless the "tampering" is a "fraud on the tribunal" or the lawyer hired the expert "merely to harass or maliciously injure plaintiff by subverting plaintiff's employment" of an expert, which did not occur here). 9/5/1996
1663

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17-Fraud on the Tribunal

73-Family Law Lawyers

A lawyer (representing a wife in a domestic relations case) who learns that someone has forged the husband's signature on a motion must report the fraud to the court, but need not report it to the police. The "determinative factor" in assessing the duty to disclose a third party's fraud on a court is "whether disclosure is necessary to prevent the court's judgment from being corrupted by a party's unlawful conduct." Although the lawyer suspects that someone in the Clerk's Office forged the signature, the lawyer has no obligation to report the individual unless the lawyer has information "clearly establishing" that the employee committed the forgery. This requires a "subjective determination" by the lawyer, guided by the Bar's indication that "at a minimum the 'clearly establishes' standard imparts a good faith belief based upon a substantial degree of certainty and not merely upon suspicion or rumor." 4/1/1996
1631

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6-Lawyers Paid by Third Party

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

73-Family Law Lawyers

A lawyer being paid by a serviceman's parents to represent him in a divorce matter nevertheless owes a duty to the serviceman instead of the parents. When the serviceman filed a bankruptcy petition that seems inconsistent with the lawyer's understanding of who is paying the lawyer's bill, the lawyer must attempt to communicate directly with the serviceman or his bankruptcy counsel to obtain the true facts. The lawyer need not withdraw yet, but depending on what the lawyer discovers may be obligated to withdraw from representing the client. If so, the lawyer must take reasonable steps "for the continued protection of client's interests." 2/7/1995
0730

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

A lawyer convinced the adversary to vacate a judgment on the grounds of improper service. The lawyer now "suspects" that service was effective and is also "convinced" that the client has no substantial defense on the claim. The lawyer has unsuccessfully attempted to contact the client about these matters. If the lawyer made representations to adverse counsel, the lawyer "may" now disclose these suspicions to adverse counsel. If the lawyer made representations to the court, the lawyer must disclose the suspicions. [The Bar did not explain how the lawyer's "suspicions" satisfy the "clearly established" standard.] 10/21/1985
1378

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer formerly represented a divorce client in negotiating a separation and property agreement. The former client later declares bankruptcy, and the lawyer knows that the former client has failed to include property on his bankruptcy petition. The Bar held that the lawyer could reveal this fact because "it is information contained in the property settlement between the parties which was not created with any expectation of confidentiality and therefore does not constitute a secret." [This LEO was overruled by LEO 1643.] 10/1/1990
1451

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

A lawyer has an ethical duty to disclose a client's knowingly false statement in a deposition, even if: (1) the false testimony is irrelevant to the case's merits; (2) the client is willing to correct the testimony if the client testifies at trial; or (3) the case does not proceed to trial. [In LEO 1650, the Bar added a "materiality" element to this analysis.] 3/13/1992
1608

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

A lawyer has made a false statement of fact by knowingly submitting medical bills from one accident in supporting a claim arising from another accident. The plaintiff also committed perjury in describing the accidents. Another lawyer learning of such conduct "may" have a duty to report the fraud and misrepresentation to the tribunal and the lawyer's conduct to the Bar. 7/21/1994
0376

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

A lawyer is not obligated to report a non-client's fraud unless it involves a tribunal. 7/11/1980
1477

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A lawyer learned that a client's answers to interrogatories were incorrect, and required updating under Supreme Court Rules. The client wanted to settle the case before amending the answers, because the amendment could adversely affect the settlement value. The lawyer may not attempt to settle the case before amending the answers, because they were signed under oath and the lawyer now knew that they were inaccurate. Such a settlement would be "fraudulently induced," whether the lawyer "verbally reaffirmed the incorrect answers or simply remained silent as to their inaccuracy during the negotiations process." [Rule 3.3(a)(2) and Rule 4.1(b) require a lawyer to disclose facts if disclosure is necessary to avoid assisting a client's criminal or fraudulent acts.]8/24/1992
0444

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17-Fraud on the Tribunal

A lawyer learning that a client has made payments to creditors in violation of the bankruptcy law must disclose that fact to the bankruptcy court. 1/18/1982
0341

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17-Fraud on the Tribunal

A lawyer learning that a non-client has perpetrated a fraud upon a tribunal must reveal the fraud. 11/2/1979
ABA-376

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17-Fraud on the Tribunal

A lawyer learning that his client has lied in a deposition must take "reasonable" steps to rectify the fraud, which may involve amending the testimony or advising the court of the fraud (a "noisy withdrawal" generally will not be sufficient). 8/6/1993
0691

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17-Fraud on the Tribunal

A lawyer may accept at face value a client's representation about the validity of a marriage unless the lawyer knows or should know that the statement is false. 4/26/1985
1327

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not file a civil action hoping to seek a default judgment against a debtor when the lawyer knows that the debt has been discharged in bankruptcy, because such a claim would be unwarranted.2/27/1990
0743

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not include false information in interrogatories. 11/18/1985
0768

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer may not prepare false interrogatory answers. 3/11/1986
0699

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17-Fraud on the Tribunal

A lawyer must advise a client to reveal fraud upon a bankruptcy court (not including certain assets on the bankruptcy petition), and must inform the court of the fraud if the client refuses -- even though the fraud occurred two years earlier in a bankruptcy case.5/22/1985
0506

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17-Fraud on the Tribunal

48-Criminal Defense Lawyers

A lawyer must advise the court of a criminal defendant client's perjury.3/30/1983
0350

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17-Fraud on the Tribunal

48-Criminal Defense Lawyers

A lawyer must inform the court of a client's true identity and past criminal record if the client has committed a fraud upon the court.12/18/1979
1643

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8-Bills and Fees

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

73-Family Law Lawyers

A lawyer represented a client in a divorce. After the representation ended, the former client filed for bankruptcy. The former client listed the lawyer's bill as a debt, but failed to list assets that were included in the publicly filed divorce property settlement agreement. The Bar held that the existence of these assets could still be a secret "despite the fact that others share the same information or the information is a matter of public record." The lawyer may therefore only reveal the fraud on the bankruptcy court if the lawyer's duty of confidentiality was outweighed by some other duty. The lawyer had no such other duty here, because the fraud: (1) did not occur during the course of the attorney-client relationship; and (2) did not relate to the subject matter of the representation. Furthermore, the lawyer may not reveal the confidences "to establish the reasonableness of his fees" because the client did not dispute the fees. The lawyer therefore may not reveal the fraud on the bankruptcy court. As the Bar explained it, "the protection of client confidences and secrets is so fundamental to the attorney-client relationship that any exceptions to the bedrock principle must be strictly limited." 9/8/1995
1347

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

71-Representing Corporations

A lawyer represented a corporation in settling a claim with an insurance company after the corporation's offices are burglarized. The lawyer later learned that corporate officers may have staged the burglary.The Bar held that a lawyer is permitted to reveal to a third party information which "clearly establishes" this the client has committed fraud. Likewise, a lawyer must reveal to a court information which "clearly establishes" that the client has committed fraud on the tribunal. The only information that "clearly establishes" the client's fraud is the client's acknowledgment to the lawyer that the client has committed a fraud. Even the arrest or conviction of the client "would not be relevant to the attorney's ethical duty" because the "only way" to "clearly establish" the fraud is by the "acknowledgment of the client." 6/28/1990
0693

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17-Fraud on the Tribunal

73-Family Law Lawyers

A lawyer represented a wife in a divorce matter. The wife confessed to adultery, but later testifies -- after the representation is over -- that she did not commit adultery. Since the fraud on the court occurred after the representation was over, the lawyer had no duty to reveal it. 4/12/1985
1362

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4-Witness-Advocate Rule

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

A lawyer represented husband and wife in an action brought by a bank on a note. The husband testified that the wife signed his name on the note without his knowledge. The wife was indicted for forgery, but the case was dismissed when the husband testified at the criminal trial that the wife signed his name with his permission. The Bar held that the lawyer should not have put the husband on as a witness in the criminal trial without first determining which of the husband's statements was truthful, and rectifying any false testimony (because "the conflicting testimony offered by the husband at the civil and criminal indictment proceedings clearly indicates that he was not testifying truthfully on at least one occasion") [the Bar did not discuss the "clearly established" test.]If lawyers know that they may be called as witnesses, they may continue the representation until it is apparent that their testimony is or may be prejudicial to their clients. Here, the lawyer's testimony would be prejudicial because the lawyer would have to testify about the client's possible perjury.7/17/1990
1731

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

17-Fraud on the Tribunal

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (in a criminal matter in which sentencing is pending) who admits that she just gave police a false identification (using her girlfriend's driver's license) while being arrested for driving while intoxicated: may not reveal the client's fraud on the third party (because it does not involve the subject matter of the representation); cannot represent (even with consent) both the client and her girlfriend because of the "inherent and direct conflict" between them; must abide by the client's decision if she is determined to remain silent about the incident on the court date for the driving arrest; may continue to represent the client in the sentencing phase of the original criminal matter but "must be careful not to mislead the court in any statements"; may not invite the court in the sentencing hearing to ask questions that would elicit information about the driving arrest incident; may not withdraw from representing the client in the underlying criminal matter because it would prejudice the client (by prompting the court to ask about the withdrawal); must advise the client of the risk that the lawyer might be obligated to reveal the driving arrest incident if asked direct questions by the court at the sentencing hearing.6/29/1999
1084

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

73-Family Law Lawyers

A lawyer representing a husband in a divorce case may not prepare two decrees that might induce federal officials to believe that the wife continues to remain eligible for federal payments, because preparation of the decrees would be misleading. In addition, the lawyer would be violating the ethics rules if the client has a duty to provide full information to federal authorities. 6/14/1988
0543

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17-Fraud on the Tribunal

73-Family Law Lawyers

A lawyer representing a party in a divorce must disclose the inaccuracy of the adversary's allegation of twelve-month separation if the client has indicated that the statement is inaccurate. The lawyer must disclosure the fraud even if the lawyer does not represent the client, but must obtain the client's consent to reveal the fraud if the information about the inaccuracy was given in confidence to the lawyer. [If the fraud amounted to "fraud on a tribunal," the lawyer would have to reveal the fraud even if the client objected.] 3/1/1984
0200

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17-Fraud on the Tribunal

A lawyer representing another lawyer in court and (in an unrelated matter) before the District Committee must disclose the client's misrepresentations. [Rule 1.6(c)(2) details a lawyer's duties in this situation.]10/21/1969
ABA-412

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer who has "actual knowledge" that a client has violated a court order governing the transfer of assets (based either on "a communication by the client to the lawyer or on other information coming to the lawyer's attention that the lawyer reasonably believes to be reliable") must first review all statements the lawyer made to the court about the matter, and correct any representations the lawyer now knows to be untrue. The lawyer must also review the client's statements to the court, and take appropriate "remedial measures," which may include disclosure of the client's previous misstatements or withdrawal from the representation. If neither the lawyer nor the client has made false statements to the court, the lawyer must consider whether the continued appearance on the client's behalf amounts to assisting the client's fraud on the court. For instance, if a court order required the client to report certain transactions that the client did not report, the lawyers' continued appearance on behalf of the client "reasonably would be viewed as a continuing representation to the court that the client is in compliance with an order prohibiting disposition of assets." The same would be true if the client disposed of an asset that was the subject matter of litigation. On the other hand, the lawyer's continued representation would not violate the ethics rules if the client had disposed of a small amount of money but otherwise had adequate resources to satisfy a judgment. A lawyer who withdraws because he or she knows that the client "intends to make a false statement to the court or believes that her continued representation of the client would assist the client in a fraud on the court" may not disclose the false statement to successor counsel or the court unless the client consents. Although a lawyer must "take reasonable remedial measures" upon learning of a client's past perjury, a lawyer who withdraws from the representation before a client commits perjury may not disclose the client's intent. 9/9/1998
0727

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17-Fraud on the Tribunal

A lawyer who has been "informed" that a client and a witness perjured themselves in a matter being considered by a federal administrative law judge must reveal the perjury. [The Bar concludes that the perjury is "clearly established," but the summary does not indicate that the client has acknowledged perjury.] 9/24/1985
1522

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

A lawyer who has misrepresented the nature of a purchase price in statements to a clerk has committed fraud on a tribunal, and the misconduct raises a substantial question as to the lawyer's fitness to practice law in other respects and therefore must be reported to the authorities. 5/11/1993
0833

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

A lawyer who is asked to file a false certificate with the state is obligated to report the client's crime unless the client agrees not to file the certificate. 10/9/1986
1528

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

A lawyer who lied to a client, opposing counsel and the court about whether a lawsuit had been filed before the running of the statute of limitations has committed a fraud on the tribunal and must be reported (applying an objective rather than a subjective test in determining if the fraud raises a substantial question as to fitness to practice law). A lawyer's duty to report such misconduct arises "when the information possessed by the reporting lawyer is based upon a substantial degree of certainty and not on rumors or suspicion." ) [Rule 8.3(a) requires a lawyer to report another lawyer's ethics violation under certain circumstances if the lawyer has "reliable information" about the breach.]5/11/1993
1687

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer who suspects that a client has committed fraud before the representation may "accept at face value" that the client's story is "bona fide" unless the lawyer "knows or, in the exercise of due diligence upon reasonable inquiry during the attorney/client relationship, the attorney should know of information to the contrary." Thus, the lawyer must maintain the client's confidences and secrets and has no duty to "confront the client and inquire directly about the client's prior conduct." However, nothing prohibits the lawyer from "investigating the matter further." If the lawyer "believes that the fraud is obvious" even though the lawyer never receives a confession from the client, the lawyer should "move to voluntarily withdraw" at a time "that does not materially prejudice the client." 9/23/1996
0924

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

A plaintiff's lawyer learning that a witness on whose testimony the lawyer's client's case depends has lied during a deposition may not "negotiate a settlement on behalf of [the] client using, by implication or otherwise" the false deposition statement. As long as the lawyer asserts only facts known to be true, the lawyer "need not disclose to counsel for defendant the witness's admission of fabrication unless subsequent discovery makes further denial impossible." [The Bar did not discuss the lawyer's possible duty to reveal the perjured testimony to the tribunal.] 6/11/1987
1650

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

After the plaintiff and defendant settled a case based at least in part on the plaintiff's expert's deposition testimony, lawyers for both sides learned that the expert lied about professional qualifications "that formed the basis of his expert opinion." The Bar reiterates that false deposition testimony is fraud on a tribunal. However, not every misrepresentation made by a witness in a deposition is a "fraud upon the tribunal" -- disclosure is required only "to prevent a judgment from being corrupted" by the "unlawful conduct." If the false testimony about the plaintiff's expert's qualifications are "material to the opinion rendered by such expert" and therefore "corrupts the opinion," the fraud must be revealed to the tribunal "regardless of whether the case proceeds to trial or is settled." [Rule 3.3(a)(2) and Rule 4.2(b) require a lawyer to disclose facts if disclosure is necessary to avoid assisting a client's criminal or fraudulent acts.]9/8/1995
1490

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17-Fraud on the Tribunal

54-Insurance Defense Lawyers

An insurance company's lawyer learned that a personal injury plaintiff had fraudulently obtained a driver's license after several DUI convictions, and used an assumed name in a court appearance. The lawyer offered to settle the personal injury case for a nuisance amount in return for not revealing these facts. Because the plaintiff had admitted this fraud upon the tribunal, the lawyer may not enter into what would be a "potentially illegal agreement," but instead must "promptly reveal the fraud to the tribunal." 10/19/1992
1726

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Defense counsel in a workers' compensation proceeding may prepare a doctor's medical report on the hospital's letterhead as long as "the content of the lawyer-composed medical report . . . honestly . . . capture[s] the testimony that the physician wishes to present (as opposed to lawyer-created testimony that the lawyer wishes to present irrespective of the physician's own testimony) and [is] reviewed, adopted and signed by the physician voluntarily." [Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote].12/10/1998
0542

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

If a client does not abandon an intent to commit perjury, the lawyer must reveal it. The lawyer should reveal the client's intent to the court, not the Commonwealth's Attorney. 3/1/1984
ABA-353

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17-Fraud on the Tribunal

If a lawyer learns before a proceeding's end that the client has provided testimony the lawyer knows to be false, the lawyer must disclosure the perjury to the tribunal. If the lawyer learns that the client intends to testify falsely, the lawyer must advise the client of the consequences. If the lawyer reasonably believes the client has abandoned such criminal intent, the lawyer may examine the client normally. If the lawyer's warnings have not dissuaded the client, the lawyer must limit the examination to truthful matters, not permit the client to testify or (as a last resort) disclose the perjury to the tribunal. 4/20/1987
1140

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17-Fraud on the Tribunal

It has "come to the attention" of a lawyer that the lawyer's clients may not have advised the bankruptcy trustee of potential assets. Whether this amounts to fraud on the tribunal is a question of law beyond the Bar's jurisdiction. If it is fraud on the tribunal, the lawyer would have an ethical obligation to reveal the fraud or an intent to commit a crime. [The Bar did not analyze the "clearly establishes" component of the test under Rule 1.6, and it seems that the client did not acknowledge the fraud.] 10/18/1988
1622

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

Two lawyers represent a defendant in circuit court felony charges and in connection with district court capiases for failure to appear. The lawyers appear before the district court on the capias matter, and do not advise the court of the simultaneous felony charges in circuit court. One of the lawyers later obtains dismissal of the felony charges in circuit court on double jeopardy grounds. It is not per se improper for the defendant's lawyers to have failed to reveal to the district court that their client was also the subject of felony charges in the circuit court. However, a lawyer may not make an "affirmative representation which is untrue." The lawyers violated this rule by telling the district court judge that the capiases were matters "between defendant and the Court." Furthermore, the lawyer's conduct "falls short of the aspirational exhortations contained in EC 7-33, in that they failed to be aboveboard with the judges in both district court and circuit court." 2/17/1995
1093

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17-Fraud on the Tribunal

21-Reporting Another Lawyer's Unethical Conduct

41-Non-Virginia Lawyers

Two lawyers represent a felon. After the trial, the client advises one of the lawyers that the other lawyer (who is a member of an out-of-state bar) instructed the client to commit perjury. The lawyer must disclose this information to the tribunal and (if it raises a substantial question of the other lawyer's fitness to practice law) to the Virginia Bar and the bar of the state in which the other lawyer practices. [If information about the ethics violation is a client confidence, a lawyer may report the other lawyer's misconduct only if the client consents under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the client under that Rule.]8/1/1988
Virginia-1900

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17-Fraud on the Tribunal

23-Communicating with an Adversary - Miscellaneous

56-Duty to Advise the Court

Virginia LEO 1900 (1/4/24) (A lawyer must disclose her client’s death to opposing counsel “before any further substantive communication,” and must disclose her client’s death in a matter before a court “no later than the next communication with, or appearance before, the court.” Failure to make such a disclosure amounts to a continuing misrepresentation of the lawyer’s authority. Lawyers may properly wait to advise opposing counsel while determining if the deceased client’s estate’s representative (if any) decides how to proceed with the representation. The Bar overrules Virginia LEO 952 (7/31/87), and instead adopts the reasoning of the ABA LEO 97 (9/18/95).1/4/2024

Copyright 2000, Thomas E. Spahn